Alcorn v. Hooker

7 Blackf. 58 | Ind. | 1844

Dewey, J.

— This was an action of slander for calling the plaintiff below a w--e. The words are alleged to have been spoken in 1842. Pleas, general issue, and a justification. The latter alleges that the plaintiff, while sole and unmarried, on the 1st of January, 1834, had carnal connection with one William Hooker. Replication, that the plaintiff, before, and at the time mentioned in the plea, was betrothed in marriage to the said Hooker; that after-wards, on the 6th of June, 1834, she was lawfully married to him; that she lived with him a virtuous life until the 1st of August, 1836,when he died; and that she had ever since continued to live in innocent and virtuous widowhood. General demurrer to the replication overruled. Jury triaV on the general issue; verdict and judgment for the plajihtiff. ■ /

The only question in this cause is as to the sufficiency of the replication.

The statute, which makes it actionable to impute to a female a want of chastity, subjects the charge to the same rules and regulations which govern an accusation subjecting the accused to criminal punishment. R. S. 1838, p. 452. Had the charge been that the plaintiff was a thief, and the defendant had justified by alleging a specific larceny committed many years before speaking the words, there • can. be no doubt it would not do to reply, that the theft was committed under circumstances of great temptation ; that the stolen goods had been returned; and that the plaintiff had lived an honest life ever since. We can see no distinction in principle between such a case, and that presented by the record; nor do we believe the cause of public morals would be subserved by introducing a distinction. There is no greater hardship in the one instance than in the other. In both, malice may occasionally disturb the peace of a reformed and virtuous life by adverting to the past. But this is a penalty which vice, though abandoned and repented of, must pay. The replication is no answer to the plea; it neither denies, nor confesses and avoids it. We think the Circuit Court erred in overruling the demurrer.

H. O'Neal and W. Quarles, for the appellant. W. W. Wick and L. Barbour, for the appellee. Sullivan, J., dissented. Per Curiam.

— The judgment is reversed with costs. Cause remanded, &c.